2013 GAINS Conference May 8, 2014

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2014 GAINS Conference
May 8, 2014
Legal Issues
Update
Presented by: Cory O. Kirby
Harben, Hartley & Hawkins, LLP
Gainesville, Georgia
NEW LEGISLATION:
WHAT DID AND DID NOT PASS
A Little Good News …
• Return of Austerity Funds
– Over 60% of the amount added to K-12 is the
$314.3 million given flexibly to allow districts to
make the best decision for their students -whether that is adding back instructional days,
reducing other furlough days, or giving teacher
pay raises in some way other than adding back
working days.
– This appropriation reduces the 2015 austerity cut
to about $747 million, the smallest since 2009.
From: "Wilson, Kerri" [email protected]
Date: May 6, 2014 at 9:00:00 AM EDT
Subject: Governor's Office of Planning and Budget: Information Request
Greetings,
For FY 2015, the Governor recommended and the legislature appropriated $314,295,574 in additional funding to
provide local educational authorities the flexibility to eliminate teacher furlough days, increase instructional days,
and increase teacher salaries. The Governor’s Office of Planning and Budget is surveying all local school systems
and state charter schools on how these additional funds will be used.
Please respond to this email by Friday, May 9, 2014 and provide the following:
1. Please provide a contact person and contact information. (Name, title, phone number, and email address)
2. What strategy will the school system (or state charter school) be using (eliminate/reduce teacher furlough
days, increase instructional days, and/or increase teacher salaries)?
3. Please indicate the impact of the chosen strategy, the estimated costs, and any additional comments. (For
example, if the school system will be eliminating/decreasing furlough days, please indicate the number of
furlough days that will be eliminated and how many, if any, furlough days will remain. If the school system will be
increasing teacher salaries, please indicate the percentage increase.)
Finally, the AFY 2014 and FY 2015 budgets included a total of $39 million designated for the support of school
districts in providing high speed internet capabilities and innovative digital content. The information regarding
the grant process for these funds has been presented to district CIOs and the applications will be released in
June. As part of your response to the questions above, please let us know if you intend to apply for this grant.
Please feel free to contact me if you have any questions.
Thank you.
Kerri Wilson
Policy Analyst
Educational Development Division
Governor’s Office of Planning and Budget
2nd Amendment &
Safe Carry Protection Act
Georgia Governor Signs 'Unprecedented'
Gun Rights Bill
The Huffington Post | by Paige Lavender
Georgia law allows guns in some schools, bars,
churches
By Devon M. Sayers and Eliott C. McLaughlin, CNN
Weapons
• HB 826 – signed April 22, 2014
– Revised Title 20: definition of “weapon”
– Revised Title 16: policy when student brings “weapon”
to school and codes of conduct
• HB 60 – signed on April 23, 2014*
– Safe Carry Protection Act
– Revised Title 16: definition of Weapon
*The last bill signed by the Governor controls
where Bills irreconcilably conflict
Current Definition of Weapon
O.C.G.A. § 16-11-127.1
"Weapon" means and includes any pistol, revolver, or any weapon
designed or intended to propel a missile of any kind, or any dirk, bowie
knife, switchblade knife, ballistic knife, any other knife having a blade
of two or more inches, straight-edge razor, razor blade, spring stick,
knuckles, whether made from metal, thermoplastic, wood, or other
similar material, blackjack, any bat, club, or other bludgeon-type
weapon, or any flailing instrument consisting of two or more rigid parts
connected in such a manner as to allow them to swing freely, which
may be known as a nun chahka, nun chuck, nunchaku, shuriken, or
fighting chain, or any disc, of whatever configuration, having at least
two points or pointed blades which is designed to be thrown or
propelled and which may be known as a throwing star or oriental dart,
or any weapon of like kind, and any stun gun or taser as defined in
subsection (a) of Code Section 16-11-106. This paragraph excludes any
of these instruments used for classroom work authorized by the
teacher.
HB 826
Effective 7/1/14
Weapon Defined by HB 826 – Effective 7/1/14
• Changed term to “Dangerous Weapon” - any weapon
commonly known as a "rocket launcher," "bazooka," or
"recoilless rifle" which fires explosive or nonexplosive
rockets designed to injure or kill personnel or destroy heavy
armor, or similar weapon used for such purpose. The term
shall also mean a weapon commonly known as a "mortar"
which fires high explosive from a metallic cylinder and
which is commonly used by the armed forces as an
antipersonnel weapon or similar weapon used for such
purpose. The term shall also mean a weapon commonly
known as a "hand grenade" or other similar weapon which
is designed to explode and injure personnel or similar
weapon used for such purpose. O.C.G.A. § 16-11-121
• Added “Firearm” - a handgun, rifle, shotgun, or other
weapon which will or can be converted to expel a projectile
by the action of an explosive or electrical charge.
• MOOT DUE TO GOVERNOR SIGNING HB 60 A DAY LATER
Weapon Defined By HB 60 – Effective 7/1/14
Basically kept the same definition and changed the location
reference in O.C.G.A. § 16-11-127.1
"Weapon" means and includes any pistol, revolver, or any weapon designed or intended to
propel a missile of any kind, or any dirk, bowie knife, switchblade knife, ballistic knife, any
other knife having a blade of two or more inches, straight-edge razor, razor blade, spring
stick, knuckles, whether made from metal, thermoplastic, wood, or other similar material,
blackjack, any bat, club, or other bludgeon-type weapon, or any flailing instrument
consisting of two or more rigid parts connected in such a manner as to allow them to
swing freely, which may be known as a nun chahka, nun chuck, nunchaku, shuriken, or
fighting chain, or any disc, of whatever configuration, having at least two points or
pointed blades which is designed to be thrown or propelled and which may be known as a
throwing star or oriental dart, or any weapon of like kind, and any stun gun or taser as
defined in subsection (a) of Code Section 16-11-106. This paragraph excludes any of these
instruments used for classroom work authorized by the teacher.
(b)(1) Except as otherwise provided in subsection (c) of this Code section, it shall be
unlawful for any person to carry to or to possess or have under such person's control
while within a school safety zone or at a school building, school function, or school
property or on a bus or other transportation furnished by the a school any weapon or
explosive compound, other than fireworks the possession of which is regulated by
Chapter 10 of Title 25.
Not too bad, right ….?
School Disciplinary Tribunals
Current
O.C.G.A. § 20-2-751. Definitions
As used in this subpart, the term:
(1) "Expulsion" means expulsion of a student from a public school
beyond the current school quarter or semester.
(2) "Long-term suspension" means the suspension of a student
from a public school for more than ten school days but not beyond
the current school quarter or semester.
(3) "Short-term suspension" means the suspension of a student
from a public school for not more than ten school days.
(4) "Weapon" means a firearm as such term is defined in Section
921 of Title 18 of the United States Code.
HB 826 – Effective 7/1/14
As used in this subpart, the term:
(1) 'Dangerous weapon' shall have the same meaning as set forth in Code Section 16-11-121.
(1)(2) 'Expulsion' means expulsion of a student from a public school beyond the current school
quarter or semester.
(3) 'Firearm' shall have the same meaning as set forth in Code Section 16-11-127.1.
(4) 'Hazardous object' means any dirk, bowie knife, switchblade knife, ballistic knife, any other knife
having a blade of two or more inches, straight-edge razor, razor blade, spring stick, knuckles,
whether made from metal, thermoplastic, wood, or other similar material, blackjack, any bat,
club, or other bludgeon-type weapon, or any flailing instrument consisting of two or more
rigid parts connected in such a manner as to allow them to swing freely, which may be known
as a nun chahka, nun chuck, nunchaku, shuriken, or fighting chain, or any disc, of whatever
configuration, having at least two points or pointed blades which is designed to be thrown or
propelled and which may be known as a throwing star or oriental dart, or any instrument of
like kind, any nonlethal air gun, and any stun gun or taser as defined in subsection (a) of Code
Section 16-11-106. Such term shall not include any of these instruments used for classroom
work authorized by the teacher.
(2)(5) 'Long-term suspension' means the suspension of a student from a public school for more than
ten school days but not beyond the current school quarter or semester.
(3)(6) 'Short-term suspension' means the suspension of a student from a public school for not more
than ten school days.
(4) 'Weapon' means a firearm as such term is defined in Section 921 of Title 18 of the United States
Code."
O.C.G.A. § 20-2-751.1 - Current
Expulsion and disciplinary policy for students bringing weapons to school
(a) Each local board of education shall establish a policy requiring the
expulsion from school for a period of not less than one calendar year of any
student who is determined, pursuant to this subpart, to have brought a weapon
to school.
(b) The local board of education shall have the authority to modify such
expulsion requirement as provided in subsection (a) of this Code section on a
case-by-case basis.
(c) A hearing officer, tribunal, panel, superintendent, or local board of education
shall be authorized to place a student determined to have brought a weapon to
school in an alternative educational setting.
(d) Nothing in this Code section shall infringe on any right provided to students
with Individualized Education Programs pursuant to the federal Individuals with
Disabilities Education Act, Section 504 of the federal Rehabilitation Act of 1973,
or the federal Americans with Disabilities Act.
HB 826 – Effective 7/1/14
O.C.G.A. § 20-2-751.1
(a) Each local board of education shall establish a policy requiring the expulsion from
school for a period of not less than one calendar year of any student who is
determined, pursuant to this subpart, to have brought a weapon to school regarding a
student's possession of a firearm, dangerous weapon, or hazardous object at school.
With respect to a student who is determined to have possessed a firearm or dangerous
weapon at school, such policy shall require expulsion from school for a period of not
less than one calendar year; provided, however, that a hearing officer, tribunal, panel,
administrator, superintendent, or local board of education shall have the authority to
modify such expulsion requirement on a case-by-case basis.
(b) The local board of education shall have the authority to modify such expulsion
requirement as provided in subsection (a) of this Code section on a case-by-case basis.
(c)(b) A hearing officer, tribunal, panel, superintendent, or local board of education
shall be authorized to place a student determined to have brought a firearm,
dangerous weapon, or hazardous object to school in an alternative educational setting.
O.C.G.A. § 20-2-751.5
"(12) Possession of a weapon firearm, as provided for in Code Section 16-11-127.1,
and possession of a dangerous weapon or hazardous object;"
HB 826 Cont’d – Effective 7/1/14
• Firearm definition does not exist anymore
• Dangerous weapon defined: any weapon commonly known
as a "rocket launcher," "bazooka," or "recoilless rifle" which
fires explosive or nonexplosive rockets designed to injure or
kill personnel or destroy heavy armor, or similar weapon
used for such purpose. The term shall also mean a weapon
commonly known as a "mortar" which fires high explosive
from a metallic cylinder and which is commonly used by
the armed forces as an antipersonnel weapon or similar
weapon used for such purpose. The term shall also mean a
weapon commonly known as a "hand grenade" or other
similar weapon which is designed to explode and injure
personnel or similar weapon used for such purpose.
O.C.G.A. § 16-11-121
HB 826 Cont’d – Effective 7/1/14
• Hazardous object defined: any dirk, bowie knife, switchblade
knife, ballistic knife, any other knife having a blade of two or
more inches, straight-edge razor, razor blade, spring stick,
knuckles, whether made from metal, thermoplastic, wood,
or other similar material, blackjack, any bat, club, or other
bludgeon-type weapon, or any flailing instrument consisting
of two or more rigid parts connected in such a manner as to
allow them to swing freely, which may be known as a nun
chahka, nun chuck, nunchaku, shuriken, or fighting chain, or
any disc, of whatever configuration, having at least two
points or pointed blades which is designed to be thrown or
propelled and which may be known as a throwing star or
oriental dart, or any instrument of like kind, any nonlethal air
gun, and any stun gun or taser as defined in subsection (a) of
Code Section 16-11-106. Such term shall not include any of
these instruments used for classroom work authorized by
the teacher. O.C.G.A.§ 20-2-751.1
Great! Now what do we do?
• Redraft policy
– Firearms = guns, explosive devices, etc.
– Other “weapons” or “hazardous objects”
• Only items in 1st bullet point involve one year
expulsion
• Progressive discipline or zero tolerance?
Board Policy
Weapons
Descriptor Code: JCDAE
It is the policy of the Board of Education that a student shall not possess, use, handle or transmit any object that
reasonably can be considered a weapon on property or in a building owned or leased by a school district, at a school
function, or on a bus or other transportation provided by the school district. Weapons may include, but are not limited to:
Any handgun, firearm, rifle, shotgun or similar weapon; any explosive compound or incendiary device; or, any other
dangerous weapon as defined in O.C.G.A. § 16-11-121, including a rocket launcher, bazooka, recoilless rifle, mortar, or
hand grenade.
Any hazardous object, including any dirk, bowie knife, switchblade knife, ballistic knife, any other knife having a blade of
two or more inches, straight-edge razor, razor blade, spring stick, knuckles, whether made from metal, thermoplastic,
wood, or other similar material, blackjack, any bat, club, or other bludgeon-type weapon, or any flailing instrument
consisting of two or more rigid parts connected in such a manner as to allow them to swing freely, which may be known as
a nun chahka, nun chuck, nunchaku, shuriken, or fighting chain, or any disc, of whatever configuration, having at least two
points or pointed blades which is designed to be thrown or propelled and which may be known as a throwing star or
oriental dart, or any instrument of like kind, any nonlethal air gun, and any stun gun or taser. Such term shall not include
any of these instruments used for classroom work authorized by the teacher.
Students who possess any weapon described in paragraph 1 in violation of this policy will be subject to a minimum of a
one calendar year expulsion. The Superintendent shall have the authority either before or after the student is referred for
a tribunal hearing to reduce the mandated one year expulsion under circumstances where the one year expulsion appears
excessive to the superintendent. The tribunal shall also have the authority to modify such expulsion requirement on a
case-by-case basis in determining the appropriate punishment. Finally, in any tribunal decision appealed to the board of
education, the board may reduce the mandated punishment but shall consider whether the superintendent and/or tribunal
considered a reduction and any rationale in denying such a reduction.
Students who possess other weapons or hazardous objects as described in paragraph 2 will be subject to discipline as
specified in the student code of conduct.
Reporting Requirements
All employees must report violations of this policy to the principal or assistant principal of the school. If the principal has
reasonable cause to believe that a report is valid, he/she must immediately make an oral report to the Superintendent and
to the appropriate law enforcement authority and district attorney.
The student’s parents or guardian will be notified immediately of his/her child’s involvement in any activity involving
weapons.
Students will be given a copy of the Code of Conduct, which includes a statement of prohibited conduct with regard to
weapons and possible disciplinary actions.
O.C.G.A. § 20-2-1184 - Current
(a) Any teacher or other person employed at any public or private elementary or
secondary school or any dean or public safety officer employed by a college or
university who has reasonable cause to believe that a student at that school has
committed any act upon school property or at any school function, which act is
prohibited by any of the following:
(1) Code Section 16-5-21, relating to aggravated assault if a firearm is involved;
(2) Code Section 16-5-24, relating to aggravated battery;
(3) Chapter 6 of Title 16, relating to sexual offenses;
(4) Code Section 16-11-127, relating to carrying a weapon or long gun in an
unauthorized location;
(5) Code Section 16-11-127.1, relating to carrying weapons at school functions
or on school property or within school safety zones;
(6) Code Section 16-11-132, relating to the illegal possession of a handgun by a
person under 18 years of age; or
(7) Code Section 16-13-30, relating to possession and other activities regarding
marijuana and controlled substances,
shall immediately report the act and the name of the student to the principal or
president of that school or the principal's or president's designee.
7 Deadly Sins – Revised
HB 826 – Effective 7/1/14
"(a) Any teacher or other person employed at any public
or private elementary or secondary school or any dean
or public safety officer employed by a college or
university who has reasonable cause to believe that a
student at that school has committed any act upon
school property or at any school function, which act is
prohibited by any of the following: Code Section 16-521 or 16-5-24, Chapter 6 of Title 16, and Code Section
392 16-11-127, 16-11-127.1, 16-11-132, or 16-13-30,
shall immediately report the act and the name of the
student to the principal or president of that school or
the principal's or president's designee."
What About “Carry Guns Everywhere”
piece?
Still unlawful to carry a firearm in school
safety zone, function or on bus unless:
1. Law enforcement or official duty to and from
2. Person has carry permit and picks up/drops off
student
3. School personnel if locked in rack,
compartment of vehicle, or container
Carry Guns Everywhere cont’d
O.C.G.A. § 16-11-130.1 Effective - 7/1/14
• Provides LBOE option, via policy, to authorize
“certain personnel” to possess any firearm
with school safety zone
Carry Guns Everywhere cont’d
Policy shall include “authorized personnel” to possess and carry and provide for:
1.
2.
3.
4.
Training of approved personnel prior to their authorization to carry weapons.
“The training shall at a minimum include training on judgment, pistol shooting,
marksmanship, and a review of current laws relating to the use of force for the
defense of self and others; provided, however, that the local board… may
substitute for certain training requirements the personnel’s prior military or law
enforcement service if the approved personnel has previously served as a
certified law enforcement officer or has had military service which involved
similar weapons training.”
An approved list of the types of weapons and ammunition and the quantity of
weapons and ammunition authorized to be possessed or carried.
“The exclusion from approval of any personnel who has had employment or
other history indicating any type of mental or emotional instability as determined
by the local board of education.”
“A mandatory method of securing weapons which shall include at a minimum a
requirement that the weapon, if permitted to be carried concealed by personnel,
shall be carried on the person and not in a purse, briefcase, bag, or similar other
accessory which is not secured on the body… and, if maintained separate from
the person, shall be maintained in a secured lock safe or similar lock box that
cannot be easily accessed by students.”
SB 301 - PASSED
Disallow
prohibitions on
wood construction
in public schools if
in compliance with
state minimum
standard codes
Georgia High School Association
SB 288
• Prohibits a high school that receives QBE funds from
participating in interscholastic events that are under
the authority of an “athletic association” unless:
– Athletic association publishes annual financial report
• Creates overview committee of high school athletes
– 5 members from House
– 5 members from Senate
– Chairs of House Education Committee and Senate
Education & Youth Committee
• Prohibits high school from participating in
interscholastic events conducted by “athletic
association” unless association complies with
committee requirements
HB 310 - PASSED
• Revision to dates for primaries, elections,
runoffs and qualifying
• Qualifying: Notice of candidacy filed in the
“office of the superintendent no earlier than
9:00 A.M. on the Monday of the eleventh
week immediately prior to the election and
no later than 12:00 Noon on the Friday
immediately following such Monday.”
HB 310 cont’d
• Primary: “Whenever any political party holds a
primary to nominate candidates for public
offices to be filled in the ensuing November
election, such primary shall be held on the
Tuesday of the twenty-fourth week prior to
the November general election in each evennumbered year or, in the case of
municipalities, on the third Tuesday in July in
each odd-numbered year.”
HB 310 cont’d
• Runoff:
– “In the case of a runoff from a general primary or a
special primary or special election held in conjunction
with a general primary, the runoff shall be held on the
Tuesday of the ninth week following such general
primary.”
– “In the case of a runoff from a special primary or
special election for an office other than a federal
office not held in conjunction with a general primary
or general election, the runoff shall be held on the
twenty-eighth day after the day of holding the
preceding special primary or special election.”
HB 310 cont’d
“Notwithstanding any provision of this
subsection to the contrary, special elections
which are to be held in conjunction with the
state-wide general primary or state-wide
general election in 2014 shall be called at
least 60 days prior to the date of such statewide general primary or state-wide general
election.”
What Did Not Pass?
31
HB 802: ESPLOST
• Proposal to allow up to 50% of net ESPLOST
proceeds to fund “educational programs and
materials.”
• Current ESPLOST would be amended, with
voter approval, by January 1, 2015
HB 802
• “Educational Programs and Materials”:
–
–
–
–
–
–
–
–
–
–
–
–
–
–
–
–
Security personnel and equipment
Technology personnel and infrastructure
Educational software, digital learning modules, and instructional online content
Arts and music education
Foreign language education
Remedial education
Graduation counseling
Career counseling
Summer school
Medical personnel, supplies, and equipment
Library or media center personnel and supplies
Laboratory equipment
Athletic equipment
Textbooks
After school programs
Any combination of the above
HB 802
• What is not included?
• “Educational programs and materials shall not
include maintenance and operations or
salaries for local school system personnel…”
– EXCEPT as otherwise provided in laundry list.
HB 729 - VETOED
• Would have provided for a new trade in credit for
leased vehicles
• Would have provided a valuation for a kit car
• Would have added a penalty for a dealer not
completing the title application within 30 days of
purchase
• County could have kept no more than 1% of the total
ad valorem tax funds to defray administrative costs
• Failure of the county to disburse funds within 20 days
would have resulted in forfeiture of the administrative
fee plus interest on the amount
36
Fingerprintfabric.com
E-Verify
Title 13
(2011)(Old)
(4) “Physical performance of
services” means the building,
altering, repairing, improving, or
demolishing of any public structure
or building or other public
improvements of any kind to public
real property within this state,
including the construction,
reconstruction, or maintenance of all
or part of a public road; or any other
performance of labor for a public
employer within this state under a
contract or other bidding process.
37
NOW - Purpose of Act
It is the intent of the General Assembly that all public
employers and contractors at every tier and level use the
federal work authorization program on all projects, jobs,
and work resulting from any bid or contract and that
every public employer and contractor working for a public
employer take all possible steps to ensure that a legal and
eligible workforce is utilized in accordance with federal
immigration and employment.
38
Definition of “Physical Performance of
Services Has Changed
(4) ‘Physical performance of services’ means the building, altering, repairing,
improving, or demolishing of any public structure or building or other public
improvements of any kind to public real property within this state, including
the construction, reconstruction, or maintenance of all or part of a public
road, or any other performance of labor or services for a public employer
within this state under a contract or other using a bidding process or by
contract wherein the labor or services exceed $2,499.99; provided however,
that such term shall not include any contract between a public employer and
an individual who is licensed pursuant to Title 26 or Title 43 or by the state Bar
of Georgia and is in good standing when such contract is for services to
rendered by such individual.
39
NOW - Title 26 & 43 Exempt from E-Verify
Title 26:
• Food – meat, poultry, dairy, eggs, bread,
grains, fish/seafood & soft drinks
• Drugs and cosmetics/pharmacists at
pharmacies
• Drug abuse treatment and education
programs
40
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
NOW - Title 43
Accountant
Architects
Athlete Agents
Ga. Athletic & Entertainment Commission
Athletic Trainers
Auctioneers
Barbers
Professional Counselors, Social Workers, and Marriage and Family
Therapists; Psychologists
Operators of Billiard Rooms
Professional Boxing
State Board of Cemeterians
Chiropractors
Cosmetologists
Dentists and Dental Hygienists
Disabled Veterans and Blind Persons Engaging in Peddling,
Operating Businesses or Practicing Professions
Ignition Interlock Device Providers
Instructors in Driver Training and Operators of Driver Training
Schools
Electrical contractors, Plumbers, Conditioned Air Contractors, LowVoltage Contractors, & Utility Contractors
Professional Engineers & Land Surveyors
Firearm Dealers
Charitable Solicitations
Funeral Directors & Establishments, Embalmers & Crematories
Geologists
Hearing Aid Dealers & Dispensers
Registration of Immigration Assistance Act
Operators of Hotels, Inns & Roadhouses
Industrial Hygiene, Health Physics, & Safety Profession Recognition
& Title Protection
Junk Dealers
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Landscape Architects
Librarians
Massage Therapists
Operators of Motor Vehicle Racetracks
Music Therapy
Nurses
Nursing Home Administrators
Occupational & Physical Therapists; Speech/Language
Pathologist s & Audiologists
Dispensing Opticians
Optometrists
Pecan Dealers & Processors
Peddlers & Itinerant Traders
Physicians, Acupuncture, Physician Assistants, Cancer and
Glaucoma Treatment, Respiratory Care, Clinical Perfusionists,
and Orthotics and Prosthetics Practice
Podiatry
Dealers in Precious Metals & Gems
Operators of Private Detective Businesses and Private
Security Businesses
Real Estate Appraisers, Brokers & Salespersons
Residential & General Contractors
Scrap Metal Processors
Snow Skiing Safety
Persons Engaged in Structural Pest Control
Transient Merchants
Used Motor Vehicle & Used Motor Vehicle Parts Dealers
Dealers in Used Watches
Veterinarians & Vet Technicians
Water and Wastewater Treatment Plant Operators and
Laboratory Analysts
41
SB 160
Question:
In the definition of “Physical Performance of
Services”, would “individual” include only a
person who has a business by himself/herself
or have employees and/or subcontractors?
Answer:
If a licensed professional enters into a contract in
his/her individual capacity for the performance of
labor or services using a bid process or exceeding
$2,499.99, the licensed professional would not be
required to submit an affidavit.
If licensed professional entering into a contract
has employees or subcontractors, then an
affidavit would be required.
Question
Does the exclusion apply for contracts between public
employers and licensed individuals, particularly on
government construction and maintenance projects
involving the use of contractors and subcontractors not
participating in the federal work authorization program,
include all individuals in Title 43, including the following:
– Architects
– Electrical contractors, plumbers, conditioned air contractors,
low-voltage contractors, and utility contractors
– Professional engineers/land surveyors
– Landscape architects
– Residential and general contractors
– Persons engaged in structural pest control ?
Answer
O.C.G.A. § 13-1-90(4) applies to any individual
who is licensed and is in good standing when
such contract for service is to be rendered by
such individual. The statute does not specifically
exclude the professionals listed. If a licensed
professional is entering into the contract in
his/her individual capacity, an affidavit is not
required. If the licensed professional is entering
into the contract in some other capacity, such as
on behalf of a corporation or other entity, then
an affidavit may be required.
SPLOST
Timeline Example
Preliminary Referendum Schedule November 3,
2015 Referendum Date
Imposition of SPLOST
O.C.G.A. § 48-8-112
(a) If the imposition of the tax is approved at the special
election, the tax shall be imposed on the first day of the next
succeeding calendar quarter which begins more than 80 days
after the date of the election at which the tax was approved
by the voters. With respect to services which are regularly
billed on a monthly basis, however, the resolution shall
become effective with respect to and the tax shall apply to
services billed on or after the effective date specified in the
previous sentence.
O.C.G.A. § 48-8-141 - SPLOST
• Requires an annual, non-technical report by the board
of education published in local newspaper prior to
December 31st of each year
• Report must provide the following information for
each project approved in the ballot language:
–
–
–
–
–
–
Original estimated cost
Current estimated cost (if different from original)
Amounts expended in prior years
Amounts expended in current year
Whether project is underfunded or behind schedule
Statement of any surplus funds which have not been
expended
Must publish annually “any excess proceeds
which have not been expended for a project or
purpose, estimated completion date, and the
actual completion cost of a project completed
during the current year.”
O.C.G.A. § 20-2-506 Multiyear Lease, Purchase
or Lease Purchase Contracts
“[E]ach county, independent, or area school system in this state shall be authorized
to enter into multiyear lease, purchase, or lease purchase contracts of all kinds for
the acquisition of goods, materials, real and personal property, services, and
supplies provided that such contract shall contain provisions for the following:”
1.
2.
3.
4.
The contract shall terminate absolutely without further obligation on the
part of the school system at the close of each calendar year;
The contract may provide for automatic renewal unless school system
terminates such contract;
The contract shall state the total obligation for the calendar year of
execution and further state the total obligation which will be incurred;
The total combined annual payments in any calendar year, excluding
guaranteed energy savings contracts, shall not exceed an amount equal
to 7.5 percent of the total local revenue collected for maintenance and
operation of the school system; and
May contain the following:
• A provision which requires that the contract
will terminate immediately at such time as
unobligated funds are no longer available; and
• Any other provision reasonably necessary to
protect the interests of the school system.
However …
“Nothing in this Code section shall restrict
school systems from executing reasonable
contracts arising out of their proprietary
functions.” O.C.G.A. § 20-2-506(h).
• What is a “proprietary function” of a school
district?
• Computer Lease?
• E-SPLOST Projects?
• CM @ Risk?
“HOWEVER, OCGA § 20-2-506 COMES
INTO PLAY ONLY WHEN A SCHOOL
SYSTEM ENTERS INTO A MULTI-YEAR
ACQUISITIONAL CONTRACT THAT HAS
NOT RECEIVED VOTER APPROVAL.”
Districts Can Answer Garnishments
Without An Attorney
(b) When a garnishment proceeding is filed in a court under any
provision of this chapter involving an entity as garnishee, the
execution and filing of a garnishee answer may be done by an
entity's authorized officer or employee and shall not constitute the
practice of law. If a traverse or claim is filed to such entity's
garnishee answer in a court of record an attorney shall be required
to represent such entity in further garnishment proceedings.
(c) An entity's payment into court of any property, money, or other
effects of the defendant, or property or money which is admitted to
be subject to garnishment, may be done by an entity's authorized
officer or employee and shall not constitute the practice of law.
But Be Careful
56
Does NOT apply to:
Bankruptcy Orders
IRS Levies
Child Support Orders
Student Loans
Where the only responsibility of the
school district is to remit a check to a
governmental entity
57
Monthly Payroll Summary
58
59
Employee receives $2,404.50 per month.
Gross
$2,404.50
SS
- 120.23
Fed Tax - 328.74
State Tax - 98.93
TRS
- 50.00
$1,806.60
Once this figure has been determined, the
amount to be garnished is the lesser of the
two amounts derived from the following
formulas:
60
Twenty-Five Percent (25%)
Monthly
Disposable
Earnings
$1,806.60
x
.25
Disposable Minus 30 x Minimum
Wage
Monthly
$1,806.60
Disposable
x
12
Earnings
Yearly Earnings
21,679.20
÷
52
Weekly Earnings
Monthly
Garnishment
$451.65
Weekly
Garnishment
416.91
- 217.50
(30 x $7.25)
199.41
X
52
Yearly
Garnishment
10,369.32
÷
12
$864.11
Therefore, the proper garnishment amount is
$451.65
61
Can the District Recoup its Cost?
(a) …[A]ctual reasonable
expenses, … amount so
incurred shall be … paid by
the party upon whom the
cost is cast …. [G]arnishee
may deduct $25.00 or 10%
of the amount paid into
the court, whichever is
greater, not to exceed
$50.00
62
Can the District Recoup its Cost?
In the event the garnishee
makes the deduction
permitted in subsection
(a) but the costs are later
cast upon the garnishee,
the garnishee shall
forthwith refund to the
defendant the funds
deducted.
63
To file a first answer no later
than 45 days after service of
summons of continuing
garnishment
64
To file further answers for the
remaining period covered by
the summons of continuing
garnishment. … [F]iled no later
than 45 days after the
previous answer date.
65
The last answer shall be filed,
notwithstanding the other
provisions of this paragraph,
no later than the one hundred
ninety-fifth day after service
66
O.C.G.A. § 18-4-82
• If the garnishee has been served with summons
in more than one garnishment case involving the
same defendant, the garnishee shall state in each
answer that the money or other property is being
delivered to the court subject to the claims of all
the cases and shall give the numbers of all such
cases in each answer.
67
O.C.G.A. § 20-2-83
• All answers by the garnishee shall, concurrently
with filing, be served upon the plaintiff or his
attorney.
• …[P]rovided, further, that, if the garnishee fails to
serve the plaintiff, the plaintiff shall be allowed
15 days from the time the plaintiff receives actual
notice of the answer to traverse the same.
68
O.C.G.A. § 18-4-85
• If the garnishee serves his answer on the
plaintiff as provided in O.C.G.A. § 18-4-83, the
plaintiff or claimant must traverse the answer
within 15 days after it is served or the
garnishee is automatically discharged from
further liability with respect to the summons
so answered.
69
Default Judgment – O.C.G.A. § 18-4-90
• In case the garnishee fails to file an answer by the
45th day after service of summons, the garnishee
shall automatically be in default. The default may
be opened as a matter of right by the filing of an
answer within 15 days of the day of default and
payment of costs. If the case is still in default
after the expiration period of 15 days, judgment
by default may be entered at any time thereafter
against the garnishee for the amount claimed to
be due on the judgment obtained against the
defendant.
70
Default Judgment – O.C.G.A. § 18-4-90
• In case the garnishee fails to file an answer by
the 45th day after service of summons, the
garnishee shall automatically be in default. The
default may be opened as a matter of right by the
filing of an answer within 15 days of the day of
default and payment of costs. If the case is still in
default after the expiration period of 15 days,
judgment by default may be entered at any time
thereafter against the garnishee for the amount
claimed to be due on the judgment obtained
against the defendant.
71
Default Judgment – O.C.G.A. § 18-4-90
• In case the garnishee fails to file an answer by the
45th day after service of summons, the garnishee
shall automatically be in default. The default
may be opened as a matter of right by the filing
of an answer within 15 days of the day of
default and payment of costs. If the case is still
in default after the expiration period of 15 days,
judgment by default may be entered at any time
thereafter against the garnishee for the amount
claimed to be due on the judgment obtained
against the defendant.
72
Default Judgment – O.C.G.A. § 18-4-90
• In case the garnishee fails to file an answer by the
45th day after service of summons, the garnishee
shall automatically be in default. The default may
be opened as a matter of right by the filing of an
answer within 15 days of the day of default and
payment of costs. If the case is still in default
after the expiration period of 15 days, judgment
by default may be entered at any time
thereafter against the garnishee for the amount
claimed to be due on the judgment obtained
against the defendant.
73
O.C.G.A. § 18-4-91 – Relief of Garnishee
from Default Judgment
When
rendered
against
a garnishee
18-4-90, on
… onaajudgment
motion isfiled
not later
than
60 daysunder
fromCode
the Section
date the
a motion filed not later than 60 days from the date the garnishee receives
garnishee
receives
actual
of theagainst
entryhim,
of the
judgment
against
actual notice
of the entry
of notice
the judgment
he may,
upon payment
him,
heaccrued
may, upon
payment
ofthe
all judgment
accrued modified
costs of so
court,
have
the
of all
costs of
court, have
that the
amount
of the judgment
shallso
bethat
reduced
an amount
to the greater
of $50.00
judgment
modified
thetoamount
of equal
the judgment
shall
be
or $50.00
100 percent
of thetoamount
by which
garnishee
was plus
reduced
toplus
an amount
equal
the greater
ofthe
$50.00
or $50.00
indebted
to the
defendant
from
time of
service
of the summons
of
100
percent
of the
amount
bythe
which
the
garnishee
was indebted
to
garnishment through and including the last day on which a timely answer
thecould
defendant
from
of service
of the summons
of
have been
madethe
for time
all money,
other property,
or effects belonging
to
garnishment
andinto
including
the last
day from
on which
a timely
the defendantthrough
which came
the garnishee's
hands
the time
of service
of the summons
through
including
themoney,
last day on
which
a timely answer
answer
could have
beenand
made
for all
other
property,
or
could have
been made
and,defendant
in the case of
garnishment
of wages,
less any
effects
belonging
to the
which
came into
the garnishee's
exemption
theof
defendant
to thethrough
garnisheeand
by certified
hands
from allowed
the time
service by
oflaw.
theNotice
summons
mail or statutory overnight delivery shall be sufficient notice as required in this
including
the last
daytrial
onofwhich
a timely
answerofcould
havebebeen
Code section.
On the
the motion,
the burden
proof shall
upon any
made
…. who objects to the timeliness of the motion to establish that the
plaintiff
motion was not filed within the time provided for by this Code section.
74
QUESTIONS?